Pinzone v Merrin[2022] QSC 107

SUPREME COURT OF QUEENSLAND

1. [1]
   Before the Court is an application by the second respondent, Adam Edwards, for orders that the application filed 14 December 2021 be:  (1) dismissed pursuant to sections 48(1)(b), (c) or (d) of the Judicial Review Act 1991 (Qld);  (2) in the alternative to order 1, that the application is dismissed pursuant to rule 280(2) of the Uniform Civil Procedure Rules 1999 (Qld);  and (3) that the applicant pay the second respondent’s costs of the proceeding on an indemnity basis, to be assessed if not agreed. 
2. [2]
   The substantive application before the Court is an application for review.  The application was filed on 14 December 2021, together with a supporting affidavit.  The matter first came on for review before the Court in January 2022.  By that stage, the first respondent, Belinda Merrin, had indicated that the first respondent would abide by orders of the Court, but would not be involved in the proceedings in accordance with the Hardiman principles.  There was also a correction to the second respondent, as it previously named the Director of Public Prosecutions, so that it be corrected to Adam Edwards as the correct second respondent. 
3. [3]
   In January 2022, directions were made for the applicant to identify grounds of review.  This was necessary as the application, on its face, was clearly deficient and did not state any grounds of review by reference to section 20 of the Judicial Review Act, and merely stated that the decision of the Magistrate be set aside and quashed.  It did say that the grounds of review were set out in the accompanying affidavit.  The accompanying affidavit set out in narrative form various challenges being made to the decision, but did not sufficiently identify the grounds of review.
4. [4]
   The history of this matter is that there has been non-compliance by the applicant with the delivery of that further amended application.  The order, made specifically on 14 January 2022, was that by 4 February 2022, the applicant file and serve an amended application for review, identifying the particular ground of review relied upon and any further supporting affidavits.  That was not complied with.
5. [5]
   On 3 February 2022, an indictment was presented in the District Court against the applicant for the charges arising out of the committal proceedings, which are the subject of the application for judicial review.  On 11 February 2022, the matter was reviewed by Justice Bradley.  On that occasion, the second respondent made an oral application that the application be dismissed, in effect for the same grounds as are now reflected in the application, filed on 2 March 2022. 
6. [6]
   When the matter was before Justice Bradley, the application did not proceed as the applicant was not properly represented at that time.  It is evident from the transcript for that hearing, which is in evidence before the Court, that the solicitor who appeared on that occasion had very limited knowledge of the matter.  In the circumstances, Justice Bradley made a further order that the applicant file and serve any amended application and supporting affidavit material by 4 pm on 25 February 2022.  On 24 February 2022, by an email late on that day, the applicant wrote to the solicitors for the respondent, again seeking a further extension to file material.
7. [7]
   On 25 February 2022, the solicitors for the applicant also indicated that Counsel was not in a position to advise until 28 February 2022.  The current application was filed on 2 March 2022 and was served the same day.  It is also evident from the material before the Court that the second respondent wrote to the solicitors for the applicant on numerous occasions in relation to the proceeding, including on 17 March, 24 March, 29 March and 7 April 2022. 
8. [8]
   The submissions on behalf of the second respondent identified that there have been 87 days since the orders were first made by me directing that an amended application be filed.  No amended application was filed, but prior to Court this morning, a proposed “amended grounds for review” was received.  That document bears the name of John Ribbands, of Counsel.  However, in submissions today, it was again indicated that further time was sought to enable Counsel to properly consider the grounds of review.  This seems, as a minimum, inconsistent with the document given to the Court and marked as MFI-A, and also the earlier correspondence, including that Counsel was going to advise by 28 February 2022. 
9. [9]
   In submissions today, reference is made to the submissions made on behalf of the second respondent on 11 February 2022 before Justice Bradley, and also the outline of submissions filed by the second respondent in respect of the application today.  The application for judicial review as filed discloses no ground of review.  Even if one considers the proposed document that has been provided to the Court today and marked MFI-A, it is difficult to see that any ground, pursuant to section 20 of the Judicial Review Act is identified. 
10. [10]
    It is proposed that the application be revised to one single paragraph, contending that the Magistrate erred in committing the applicant for trial in the circumstances where:  (a) the case against the applicant was a circumstantial case;  (b) there was alternative rational inference that arose from the facts;  (c) the alternative rational inference was inconsistent with the innocence with the applicant;  (d) the alternative rational inference should not be excluded, and;  (e) as a consequence, a jury would be required as a matter of law to acquit. 
11. [11]
    This proposed amended ground of review appears more to be in the form of an appeal ground in respect of the sufficiency of evidence at trial.  It is difficult to see how a section 20 ground is made out, as no specific error is identified.  In submissions, it appears that what is disagreed with is the Magistrate’s balancing of the evidence received, rather than a challenge to the receipt of that evidence.  Further, it is the Magistrate’s conclusion in light of a no case application that was made that is ultimately sought to be challenged. 
12. [12]
    The second respondent contends that as the indictment has now been presented to the District Court, a review of the sufficiency of evidence at the committal proceeding lacks any utility, because its outcome can have no bearing on the decision of the Director of Public Prosecutions to prosecute or to continue with the prosecution once it has been initiated.
13. [13]
    In this regard, reference is made to the case of Batemberski v Fitzsimon [2000] QSC 185.  In that case, Justice Jones of this Court was considering an application under the Judicial Review Act and was also considering an application pursuant to section 48 of the Judicial Review Act.  Similarly to this case, in that case, subsequent to the decision of the Magistrate, the Director of Public Prosecutions presented an indictment to the Supreme Court, charging the applicant. 
14. [14]
    In those circumstances, Justice Jones recognised that, whilst there is some authority to the effect that this Court has jurisdiction to undertake a review of committal proceedings, this jurisdiction is likely to be exercised only in exceptional circumstances.  Reference was made to the decision of Lamb v Moss (1983) 49 ALR 533, where it was recognised, again, that it should only be exercised in the most exceptional cases. 
15. [15]
    In that case, Mr Batemberski sought review of the evidence considered by the Magistrate.  His Honour commented that there was a challenge to evidence on the basis of perjury, but this indicated a live issue to be dealt with at trial, or perhaps on directions before trial.  It was not a matter that could be determined on a review of any decision to commit.  His Honour also considered a decision of Justice Sheppard, in Foord v Whiddett (1985) 6 FCR 475, where his Honour referred to remarks in Lamb v Moss and also to High Court authorities, in Clyne v Director of Public Prosecutions (1984) 154 CLR 640 and Seymour v Attorney-General [1984] FCA 329.  His Honour noted:

“This is a case where, notwithstanding that the evidence in support of the charge is in short compass, the fundamental submission of senior counsel for the applicant necessarily involves an examination of the detail of the evidence already considered by the magistrate in determining the existence of a case sufficient to warrant a decision to commit for trial. If there is a trial, the evidence will be given again. It will not come out perhaps precisely as it has come out before the magistrate. It will then need to be considered by a trial Judge in connection with any submission that there is no case proper to go to the jury. It is my opinion that it is highly undesirable for courts of civil jurisdiction to be asked to interfere, in the way that this application does, with the due processes of the criminal law and its administration. If there were no more to the case, I would have no hesitation in deciding that my discretion should be exercised adversely to the applicant with the result that the application would be dismissed.”

16. [16]
    Justice Jones, in the Batemberski decision further commented that:

“The inquiry sought in the application is inappropriate and undesirable in the context of judicial review.  Its outcome can have no bearing on the decision of the Director of Public Prosecutions to prosecute or to continue with the prosecution once it has been initiated.”

17. [17]
    Here, the second respondent relies on this decision as authority as the current case is similar in that an indictment has subsequently been presented.  Further, it seeks a review based on the considerations of the evidence by the Magistrate.  In the current case, it really is consideration of the weight and the analysis of the evidence, rather than any challenge to the admissibility of the evidence. 
18. [18]
    Reference is also made to the decision of Graves v Duroux [2014] QSC 198, by Philip McMurdo J, of this Court.  In that case, his Honour was considering an application for judicial review in respect of a decision of the Magistrate to commit the applicant to trial on three charges under the Drugs Misuse Act 1986 (Qld).  There, the applicant challenged the decision under the Judicial Review Act on the basis that the Magistrate erred in law by concluding that the evidence presented at the committal could support a finding of guilty at a trial.  That is similar to what appears to be alleged here.  Justice McMurdo recognised that:

“The Magistrate’s decision is of a kind for which there is jurisdiction to grant relief under Part 2 of the Judicial Review Act.”

19. [19]
    However, his Honour noted, that:

“In cases such as this, (although an apparent ground for review is demonstrated), generally the court will exercise its discretion to refuse relief.”

20. [20]
    His Honour referred to the comments in Lamb v Moss, by Bowen CJ, Sheppard and Fitzgerald JJ, where:

“The power to make an order of review under the [Administrative Decisions (Judicial Review) Act 1977 (Cth)] in respect of committal proceedings should be exercised only in most exceptional cases, especially in respect of a decision in the course of proceedings.”

21. [21]
    His Honour also went on, at paragraph 4:

“This reluctance to exercise the court’s civil jurisdiction to interfere with the course of criminal proceedings has been recognised in a number of decisions in this court:  see Chen v ASM;  Batemberski v Fitzsimon; Leahy v Barnes [2013] QSC 226.”

22. [22]
    In respect of Leahy v Barnes, his Honour commented:

“In the last of those cases, Henry J was persuaded to make a statutory order of review to set aside a decision of a coroner to commit the applicant for trial, where “the approach of the learned Coroner involved an exceptional deviation from legal principle in respect of an aspect of the evidence which must have had a significant bearing upon the question of whether there was sufficient evidence to commit the applicant for trial.”

23. [23]
    Here, there is no suggestion that the Magistrate’s decision involved an exceptional deviation from legal principle, as indicated previously, to the extent that the basis of the challenge can be understood.  It is really a basis of insufficiency of evidence.  Similarly in Graves v Duroux, the argument there was that the Magistrate erred in law in deciding that the evidence, which was tendered at the committal hearing, presented a case upon which the applicant should be committed for trial.  His Honour, Justice McMurdo, at paragraph 5, continued:

“Cases in which courts will judicially review such conclusions by magistrates, as administrative decisions affected by legal error, will be rare. Were it otherwise, the course of criminal proceedings would be unduly hampered and delayed by civil proceedings, brought either by the prosecution or the defendant and there would be a risk that such proceedings routinely would be brought as a rehearing of committal proceedings. Therefore, at least where it is arguable that a magistrate was correct in deciding to commit a defendant for trial, this court should not exercise its discretion to grant relief under the Judicial Review Act.”

24. [24]
    His Honour, in that case, went onto consider the evidence, however, it does not appear that an indictment was presented in that case. 
25. [25]
    In the circumstances of the current application, submissions on behalf of the second respondent are that the Court has power, pursuant to section 48(1) of the Judicial Review Act to dismiss the application on the basis that there is no reasonable basis for the application or claim disclosed and/or that the application is an abuse of the process of the Court.
26. [26]
    It is also submitted that it is an abuse to ventilate a matter in the civil jurisdiction of this Court of the current nature, which would be unbinding in the criminal jurisdiction of the District Court and would potentially lead to a fragmentation of the criminal justice system. 
27. [27]
    In respect of the application, under rule 280(2) of the UCPR, given the developments this morning, that is not pressed.  However, the circumstances of the disobedience with the Court directions and the delay are relevant in respect of the issue of costs. 
28. [28]
    It is submitted that the applicant has no prospects of success in the applicant’s application, and in the circumstances, it would be appropriate to order that the application be dismissed.  Submissions have been made on behalf of the applicant, responding to the submissions made on 11 February 2022, and the submissions filed in respect of today’s proceedings.  The applicant did have the benefit of the submissions, dated 11 February 2022, and was aware of the issues contended for by the second respondent. 
29. [29]
    In particular, the applicant was on notice that, in light of the indictment having been presented, the correct forum to pursue the argument that there was no evidence capable of sustaining a conviction is in the District Court of Queensland, where the indictment has been presented.  The applicant, in submissions before the Court, sought to distinguish the Batemberski v Fitzsimon case.  This submission appears to focus on the particular challenge to evidence in that case, as opposed to the principles of approach, which were identified in that proceeding.
30. [30]
    Issues were also raised by the applicant as to whether, if it was successful on its application for judicial review, this would, in effect, undermine the Crown being able to proceed with the indictment as presented.  The second respondent has referred the Court to section 561 of the Criminal Code Act 1899 (Qld), where the Director of Public Prosecutions has the ability to present an indictment, whether or not the matter has been through the committal process.
31. [31]
    Even if the applicant were successful in respect of its application for judicial review, that does not mean that the indictment before the District Court could not proceed.  In any event, even if there was some basis for challenging the current indictment, which is not conceded, it would still be open to present an ex officio indictment in any event dealing with the same or similar charges. 
32. [32]
    The question then becomes:  what is the utility of the current proceedings proceeding before this Court?  Based on the principles, as identified in the authorities of Batemberski v Fitzsimon in particular, but also the more general principles in Graves v Duroux, I am satisfied that there is no reasonable basis for the application, as there is no utility, even if the applicant was ultimately successful in relation to the application for judicial review. 
33. [33]
    It may be that, had the application for judicial review been dealt with more expeditiously and prior to the indictment being presented, then there may have been different considerations to be balanced.  However, there has been considerable delay following the Magistrate’s decision, and then even considerable delay from the time that the application was brought before this Court to today. 
34. [34]
    The intervening period has resulted in the indictment being presented, and as such, there is no utility in these proceedings continuing.  Further, the application, as it is currently framed, even taking into account the proposed amendments in MFI-A, there is no clear error that has been properly articulated which could assist the Court in properly evaluating whether there was any potential basis for a challenge which would survive the presentation of the indictment. 
35. [35]
    On the material before the Court, I am not satisfied that there is any ground on the current material.  In the circumstances, I consider that there is a basis within section 48(1)(b) and (d) of the Judicial Review Act for the application to be dismissed. 
36. [36]
    In respect of the issue of costs, the second respondent seeks costs on an indemnity basis.  The second respondent contends that, once the indictment was presented, the applicant ought to have withdrawn this application.  The application was not withdrawn. 
37. [37]
    Further, there was a failure to comply with Court orders for a period of time of over 87 days since I initially made the directions to file an amended application specifying the particular grounds of review relied upon, and also 59 days since Justice Bradley awarded costs against the applicant and made a further order in similar terms.  It was only minutes before Court commenced today that any material was received from the applicant. 
38. [38]
    The issues had been ventilated largely before Justice Bradley in February, and the applicant was on notice of the hurdles which it faced in relation to the arguments about the presentation of the indictment.  Submissions have been made today that, whilst this is a civil matter, it involves criminal law issues and it would not be appropriate to award indemnity costs, but rather that costs should follow the event on the standard basis.
39. [39]
    However, these are civil proceedings, and there has been an extended and protracted non-compliance with the directions of the Court, and it has resulted in a number of appearances being required that otherwise would have not been required if the matter had been expeditiously dealt with in accordance with the obligation under rule 5. 
40. [40]
    In the circumstances, I am satisfied that it is appropriate to award indemnity costs. 
41. [41]
    In the circumstances, the order of the Court is that:  (1) pursuant to section 48(1)(b) and (d) of the Judicial Review Act 1991 (Qld), the application filed on 14 December 2021 is dismissed;  (2) the applicant is to pay the costs of the second respondent on an indemnity basis, to be assessed if not agreed.